Bombay High Court

Ramesh vs Maharashtra State Electricity on 23 December, 2011

Bench: S.V. Gangapurwala

                            1                       W.P.No.6513/11

                            REPORTED




                                                              
           IN THE HIGH COURT OF JUDICATURE AT




                                      
                            BOMBAY

                   BENCH AT AURANGABAD.




                                     
            WRIT PETITION    NO.6513          OF 2011.



     Ramesh S/o Rangnathrao Sonawane,




                        
     Age 52 years, Occ.Service as
     Junior Manager, MSEDECL,
             
     Osmanabad, R/o Behind Amba Hanuman,
     Ambajogai Road, SBH Colony,
     Latur, Dist.Latur.            ... Petitioner.
            
              Versus
      

     1. Maharashtra State Electricity
     Distribution Company Ltd.,
     through Superintending Engineer,
   



     Osmanabad.

     2. The Regional Executive
     Director, M.S.E.D.C.L.





     Senapati Bapat Road,
     Pune.

     3. The Director (Operation),
     M.S.E.D.C.L. Disciplinary
     Action Section,





     Prakashgad, 4th floor,
     Station Road, Bandra (E),
     Mumbai-51.                   ... Respondents.


                                ...

     Mr.N.B.Khandare, advocate holding for
     Mr.S.S.Deshmukh, advocate for the petitioner.
     Mr.S.M.Godsay, advocate for the Respondents.




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                                  2                        W.P.No.6513/11

                                      ...




                                                                    
                        CORAM : S.V.GANGAPURWALA,J.

Reserved on : 16.12.2011.

Pronounced on: 23.12.2011.

ORAL JUDGMENT :

1. Heard.

Rule. Rule returnable forthwith. With

the consent of the parties the petition is taken

up for final hearing.

3. The petitioner at the relevant time was

working as Junior Manager (Personnel) with the

Respondents. On 2.2.2010, an offence punishable

under the provisions of Prevention of Corruption

Act, came to be registered against the

petitioner. The petitioner was suspended by

Respondents vide order dated 15.2.2010 with

effect from 2.2.2010. On or about 26.3.2010, the

charge-sheet in Departmental inquiry was served

on the petitioner. The petitioner filed Writ

Petition No.2809/2010, challenging the said

charge-sheet. The said Writ Petition was filed

on the ground that as Criminal case is pending,

the Departmental Inquiry be stayed. The said

Writ Petition was pending. In the Departmental

proceedings the petitioner sought extension of

time. On 24.6.2010, show cause notice was issued

to the petitioner calling explanation from the

petitioner as to why penalty of dismissal should

not be imposed. The petitioner on 5.7.2010,

filed application for extension of time to file

say. The petitioner came to be dismissed from

service on 19.7.2010. The petitioner challenged

the said order of dismissal in the Departmental

appeal. The same came to be dismissed. The

petitioner on 21.4.2010, is acquitted of the

charges under the Prevention of Corruption Act

by the Sessions Court. The petitioner has

impugned the order of dismissal from service and

the rejection of his appeal in the present Writ

Petition.

4. Mr.Khandare, learned counsel for the

petitioner submits that the Criminal case filed

against the petitioner under the Prevention of

Corruption Act and the Departmental proceedings

were on the same set of facts. The charge-sheet

issued in the Departmental proceedings is

practically the same charge-sheet filed in the

Criminal case before the Sessions Court. There

was no difference in the same and as the Criminal

Court has acquitted the petitioner, the order of

dismissal deserves to be set aside. For the

said purpose, the learned counsel relies on the

judgment of the Apex court in a case of "G.M.Tank

Vs. State of Gujarat and another" reported in

2006 (5) SCC 446.

5. The learned counsel contends that there

was no inquiry in the eye of law. No evidence

was recorded in the said Departmental Inquiry

proceedings. Not a single witness was examined

nor statement of any person was recorded. It is

a case of no inquiry. In such circumstances, the

dismissal order can not be sustained.

6. The learned counsel contends that even

if it is assumed that the Respondent had resorted

to summary inquiry, still, the Respondent has to

base its decision on some evidence. As no

evidence is recorded nor there is any evidence of

the guilt of the petitioner, the petitioner could

not have been terminated.

7. Mr.Godsay, learned counsel for the

Respondents submits that the Respondent has

resorted to summary inquiry as laid down under

Regulation 90 of the M.S.E.D.C.L. Employees'

Service Regulations 2005, as the misconduct is

too grave. The Criminal case was registered

against the petitioner and he was charge-sheeted

in the said criminal case under the Prevention of

Corruption Act. The gravity of the offence is

much more, and as such it was not necessary to

follow the normal procedure. The petitioner was

given opportunity but he failed to file his say.

No error is committed while imposing the

punishment of dismissal on the petitioner. The

learned counsel relies on the judgment of the

Division Bench of this Court in case of W.P.No.

1853/2009 dated 2l.11.2009 and the judgment of

the Division Bench of this Court in W.P.No.

4692/2010, dated 23.6.2010 and the judgment of

the learned Single Judge of this Court in W.P.No.

6751/2008. The learned counsel submits that the

Writ Petition is without any merit and deserves

to be dismissed.

8. Before adverting to the arguments

canvassed by the learned counsel for the

respective parties, it would be appropriate to

refer to the Regulation 90 of the said MSEDCL

Employees' ig Service Regulations 2005. The said

regulation 90 reads as under :

"90. SUMMARY PROCEEDINGS

The Competent Authority may hold

summary proceeding/s in case,

(a) where the employee is caught

red-handed having committed or while

committing an act of misconduct,

(b) where there is obvious evidence

of the act of misconduct having been

committed or,

(c) where the misconduct or

misbehaviour is considered too grave

and convincing to warrant or justify

the normal procedure to be followed,

(d) where having regard to the

surrounding circumstances and the

gravity of the offence for which the

employee is convicted in a court of

criminal law, Competent Authority is

of the opinion that summary

proceedings are appropriate for

deciding any punishment including

dismissal or removal,

(e) where an employee is involved

in misconduct of serious nature

causing loss to the Company is due

for retirement from the services of

the Company within a period of three

months.

without following the procedure

prescribed in Service Regulation 88

and take a decision on the evidence

available after charge-sheeting the

employee concerned, as prescribed in

Annexure 3 and after giving him an

opportunity to make a statement.

              The     summary         decision      may      be

       made     effective         forthwith           unless

stayed by the Appellate Authority."

9. With the assistance of the learned

counsel, I have gone through the documents

annexed with the petition. It would appear that

the charge-sheet filed against the petitioner in

the Criminal case before the Sessions Court and

the charge-sheet issued to the petitioner in the

Departmental Inquiry is practically the same.

ig On

the basis of the evidence before it, the Sessions

Court has acquitted the petitioner of the charges

levelled against him. It is trite that in the

Criminal case, the charges have to be proved

beyond reasonable doubt. In the Departmental

proceedings, the charges may not be required to

be proved beyond reasonable doubt but none the

less in Departmental proceedings, the Inquiry

Officer has come to the conclusion on the basis

of some evidence.

10. I am not called upon to decide as to

whether Regulation 90, that is of summary inquiry

would be applicable or whether employer ought to

have resorted to Regulation 88 i.e. the normal

procedure for conducting an inquiry. Even

assuming that Regulation 90 applies, still, it

does not dispense with the evidence.

     11.         In      the       present             case,        in       the




                                             
     Departmental       Inquiry,       not    a    single       witness       is

     examined     nor    a     statement          of    any     person        is




                               
     recorded.        Simply on the basis of charge-sheet

     the   Inquiryig    Officer    has       passed       the       order     of

     dismissal from service.             The charge-sheet issued

to the petitioner in the Departmental Inquiry is

practically the same charge-sheet as filed in the

Criminal case before the Sessions court. Even

Regulation 90 prescribes the decision to be taken

by the competent authority on the "evidence

available" after charge-sheeting the employee

concerned.

Evidence is the means from which an

inference may logically be drawn as to the

existence of a fact. It consists of proof by

testimony of witnesses, on oath; or by writings

or records. The word evidence includes all the

legal means exclusive of mere arguments which did

tend to prove or disprove any matter of fact, the

truth of which is submitted to the investigation.

In other words, evidence includes all the means

by which any alleged matter of fact, the truth of

which is submitted to investigation is

established or disproved. As per Indian Evidence

Act, evidence means and includes all statements

which the Court permits or requires to be made

before it by witnesses, in relation to matters of

fact under inquiry; such statements are called

oral evidence; all documents produced for the

inspection of the Court; such documents are

called documentary evidence.

     12.          In        the      present            case,         there         is

     absolutely no evidence.                   The Departmental Inquiry

proceeded on the basis of charge-sheet which was

filed in the Criminal case before the Sessions

Court without any independent evidence. The

Criminal Court has acquitted the petitioner of

the charges levelled against him. Even if

summary procedure is resorted to as contemplated

under Regulation 90, still, the punishment has to

be on the basis of some evidence. When no

evidence is recorded, it can not be said that any

inquiry has been conducted. The judgment of the

Apex Court in a case of "G.M.Tank Vs. State of

Gujarat and another" referred supra would be